Hood v. Montgomery

Walker, J. It was the duty of the judge of probate to appoint 4‘ suitable persons ” as members of the committee. P. S., c. 243, ss. 10, 20. If unsuitable persons were appointed, it was the right of the defendants to object and to seek to have the appointment revoked, if they presented their objection in a reasonable time *406 after they were informed of the facts authorizing that conclusion-The fact that parties agree that certain persons may be appointed upon the committee is evidence that in that proceeding they are- “ suitable.” It appears that the judge of probate made the appointment in this case, relying upon the alleged agreement of the parties as to the suitableness of the appointees, but that the defendants upon learning of the appointment objected thereto, because there was no agreement as to the appointment of one of the men. Having been misled iii this material respect, the court had the power to correct the error by revoking the appointment, when the matter was seasonably and properly called to its attention. Ayer v. Messer, 59 N. H. 279, 280; Reed v. Prescott, 70 N. H. 88. The appointment of the committee was a preliminary proceeding which did not have the effect of a final decree upon the rights of the parties. P. S., c. 200, s. 1; Parker v. Gregg, 23 N. H. 416, 423. The plaintiff acquired no right to have the partition made by a committee composed of unsuitable men; and if the revocation had been made when the defendants first made their objection, it is-apparent that the rights of the parties would have been amply protected. The fact, however, that the court did not see fit to pass upon the matter at that time, but, in the exercise of its discretion, in effect postponed its consideration until after the return of the-committee’s report, did not as a matter of law amount to a waiver of the defendants’ objection seasonably made. Nor was the non-action of the court equivalent to an order overruling the objection. The decision of the question thus raised was merely held in abeyance ; and when the objection was finally sustained and the appointment revoked, the legal effect of the order of revocation was the same as though it had been made in the first instance. The proceedings before the committee and its report therefore necessarily became invalid. This result is reached upon the assumption that the facts set forth in the appeal are true. As the case is understood, however, the defendants’ motion to dismiss the appeal presents merely the question of the legal sufficiency of the reasons assigned for the appeal, which was taken from the decree finally made setting aside the report, and not from the previous action of the court. A hearing in the superior court is necessary to determine the truthfulness of the allegations. Whether the division recommended by the committee was just and equitable will become immaterial, if it should appear that the-committee was not such a committee as the parties were legally entitled to. The other reasons of appeal do not appear to be-important. Exception sustained. All concurred.